Revised WOTUS Rule Chooses to Continue Government Overreach
In a move that has left the agricultural community disappointed, the Environmental Protection Agency (EPA) recently unveiled its revised Waters of the U.S. (WOTUS) Rule, which has fallen short of addressing the concerns of farmers and ranchers. EPA had an opportunity to write a Waters of the U.S. Rule that’s fair to farmers and stands the test of time, but instead chose to continue government overreach and revise only a small slice of the rule that was rejected by the Supreme Court.
We’re pleased the vague and confusing “significant nexus” test has been eliminated as the Supreme Court dictated, but EPA ignored other concerns raised by the Justices, 27 states, and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act. While an improvement, it was far from the clarification we were seeking.
The Arizona Farm Bureau, like many others, expressed our disappointment with the direction taken by the EPA. This revision has failed to provide the fairness that farmers and ranchers had hoped for, leaving them in a state of uncertainty and confusion. EPA continues to attempt to expand its jurisdictional reach, particularly through the “relatively permanent” standard, which the agency has intentionally kept vague.
The EPA's attempt to rewrite the WOTUS Rule was seen as a crucial opportunity to create a fair and durable regulatory framework that would benefit the agricultural community. Unfortunately, the revised rule has fallen short of these expectations, and the Arizona Farm Bureau is disheartened by the direction taken by the EPA.
One of the main concerns that we raised is the lack of clarity and certainty in the new rule. While the EPA has made efforts to address some of the contentious issues stemming from the Supreme Court decision, such as eliminating the problematic significant nexus test, it appears that the agencies are using other elements of the rule to expand their jurisdictional reach. This continued streak of ambiguity in policy leaves landowners grappling with ongoing confusion and uncertainty.
Despite the incredible progress made with the Sackett decision, the EPA and related agencies continue to maintain vague and amorphous policies, further contributing to the challenges faced by landowners. The agricultural community has long called for a durable and transparent rule, but it seems that the current rulemaking has missed the mark.
For our members, understanding the specifics of the WOTUS rule in their respective states is crucial. With ongoing litigation that has halted the 2023 WOTUS rule in 27 states, it is imperative that agricultural professionals are well-informed about the regulations applicable in their regions. Farmers and ranchers share the goal of protecting the nation’s waterways. They deserve rules that don’t require a team of attorneys and consultants to identify “navigable waters” on their land.
The focus now shifts to ensuring that members of organizations like the Arizona Farm Bureau are equipped with the knowledge and resources needed to adapt to this evolving regulatory landscape.